SMITH v. NATIONAL CITY MORTGAGE

JOHN MENDEZ, District Judge

This matter comes before the Court on Defendant PNC Bank National Association's ("PNC") Motion to Dismiss (Doc. 16) and Motion to Strike Portions of Plaintiff's First Amended Complaint (Doc. 19). PNC asks the Court to dismiss and to strike portions the First Amended Complaint ("FAC") (Doc. 13) filed by Plaintiff William Allen Smith ("Plaintiff"). Plaintiff opposes the motions.

This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g).

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that Defendants National City Mortgage, United Lenders Group ("United"), Jeff Moore ("Moore"), and Kondaur Capital Corporation ("Kondaur") fraudulently conspired to induce him into an usurious loan for their financial gain and that his right to cancel the loan agreement was improperly reneged by PNC.

PNC is a successor by merger to National City Bank, previously doing business as National City Mortgage. The Court will refer to PNC instead of National City Mortgage since it is the current party in interest.

In October of 2006, Plaintiff sought a construction loan to finance the construction of a home located at 5 Stonefield Court, Sacramento, California. One week after being denied a loan from PNC, Plaintiff was contacted by Moore, an independent broker, who allegedly stated that he had been directed by PNC to broker Plaintiff's loan through United.

Moore allegedly advised Plaintiff that he could get him the best deal and the best interest rate available on the market. On or about January 31, 2007, PNC approved Plaintiff for a construction loan at a 30-year fixed rate of 7.825% to borrow a principal sum of $880,000.00 with a monthly mortgage payment of $6,350.10 per month. Based on PNC's alleged verbal authorization, Plaintiff began construction on his home.

Plaintiff alleges that United and Moore overstated his income on the loan application without Plaintiff's knowledge or consent. Plaintiff claims he accurately stated his income as $23,000.00 per month whereas Moore stated his income as $33,000.00 per month. Plaintiff avers that since Plaintiff already gave PNC his correct income in his initial loan application, PNC was aware that Moore inflated Plaintiff's income in order to qualify him for the loan.

On February 9, 2007, the day of the loan closing, Plaintiff alleges that the loan terms presented were worse than the terms he had been promised. On closing day, the loan was an adjustable rate loan that included a ten year interest-only provision and required twice the down payment. Plaintiff claims he felt pressured to sign the loan documents because construction had already began on his house. Plaintiff alleges that he would not have signed the loan agreement except that the loan documents contained a right to cancel notification citing the Truth in Lending Act ("TILA"). Plaintiff claims the escrow agent reassured him that the TILA notice gave him the right to cancel the loan within three days of signing. Plaintiff alleges that he agreed to sign the documents based on the promise he could rescind the loan.

Plaintiff alleges that within the three day cancellation period, he exercised and delivered the loan cancellation to the lender and title company. Plaintiff was notified by representatives of PNC and Moore that the construction loan could not be cancelled.

In or around June 2008, Plaintiff sought a forbearance settlement and Plaintiff was allegedly advised by a PNC representative that he would be eligible for a permanent modification of his loan after a three month trial payment period, if Plaintiff reduced his unsecured debt. On or about July 3, 2008, PNC sent a "forbearance agreement" to Plaintiff requesting payments of $2,895.00 respectively, for Plaintiff's July, August, and September mortgage payments. Plaintiff alleges that at PNC's direction, he filed Chapter 7 bankruptcy on July 30, 2008 to reduce his unsecured debt. On December 15, 2008, Plaintiff contacted PNC and was advised by a PNC customer representative that PNC had approved the loan modification and that the modification paperwork was forthcoming.

While waiting for the loan modification confirmation, Plaintiff was allegedly notified by PNC that his loan had been sold to Kondaur, who would finalize the loan modification. On February 12, 2009, Plaintiff alleges he was assured by a Kondaur representative that the modification began by PNC would continue to be processed. On the same day, Kondaur issued a Notice of Default to Plaintiff.

Plaintiff brings this action alleging nine causes of action for fraud, declaratory relief (T.I.L.A.), breach of fiduciary duty, declaratory relief (U.C.C. and California Commercial Code), accounting, violation of the Rosenthal Debt Collection Act, unjust enrichment, negligence and violation of California Business and Professions Code Section 17200 et. seq.

II. OPINION

A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure section 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975),overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure § 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

2. Motion to Strike

Rule 12(f) provides in pertinent part that:

The Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. . . . Motions to strike are disfavored and infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.

Bassett v. Ruggles, et al., 2009 WL 2982895 at *24 (E.D. Cal. Sept. 14, 2009) (internal citations omitted).

B. Claims for Relief

1. Fraud

PNC argues that Plaintiff does not plead his first claim for fraud with particularity. Plaintiff responds that he pleads the fraud elements with sufficient detail to satisfy Rule 9(b)'s heightened pleading requirements.

While pleadings generally require "a short and plain statement of the claim showing that the pleader is entitled to relief," FED.R.CIV.P. 8(a)(2), when fraud is alleged "a party must state with particularity the circumstances constituting fraud. . . ." FED.R.CIV.P. 9(b).

Rule 9(b) requires fraud claims to be "specific enough to give defendants notice of the particular misconduct . . . so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal quotations omitted). "Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal citations omitted). While Rule 9(b) requires a heightened pleading standard, it "does not require nor make legitimate the pleading of detailed evidentiary matter." Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir. 1973).

To plead a cause of action for fraud, Plaintiff must show: (1) a misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage. Buckland v. Threshold Enterprises, Ltd., 155 Cal.App.4th 798, 807 (Cal. Ct. App. 2d 2007). PNC's main argument is that Plaintiff does not properly allege the intent to defraud and the justifiable reliance elements of the fraud allegation.

The Court finds that Plaintiff has sufficiently pled the intent to defraud element by alleging that PNC "paid Moore and United commissions based on their ability to make these false statements and induce Plaintiff into the loan agreement." Id. at ¶ 114. Plaintiff also alleges a scheme in which PNC's intent "under the securitization process, was to trap as many unsuspecting borrowers as possible . . . regardless of the borrower's credit history or ability to pay, take as much of the borrower's equity as possible, then sell the note to an entity who could foreclose upon the note free from fraud allegations." Id. at ¶ 43.

Furthermore, Plaintiff has properly alleged justifiable reliance. Plaintiff avers that he signed the loan documents because he was given a written agreement that he had the right to cancel the loan within three days and he was verbally assured he could rescind within those three days. Id. at ¶ 61-62. Plaintiff also alleges that he paid his mortgage payments in reliance on PNC's promises that he could receive a loan modification. Id. at ¶ 69.

The FAC is specific enough to put PNC on notice of the charges. Accordingly, PNC's motion to dismiss Claim 1 alleging fraud is DENIED.

2. Breach of Fiduciary Duty

PNC argues that Claim 3, alleging a breach of fiduciary duty, fails to state a claim because Moore represented himself to be Plaintiff's fiduciary, not PNC. Additionally, as a matter of California law, financial institutions owe no legal or fiduciary duty of care to borrowers. Plaintiff counters that since PNC referred Moore to Plaintiff, the fiduciary relationship that existed between Moore and Plaintiff extended to PNC through agency principles and, as a matter of law, a fiduciary relationship exists between a real estate loan broker and a borrower.

"The elements of a cause of action for breach of fiduciary duty are: 1) the existence of a fiduciary duty; 2) a breach of the fiduciary duty; and 3) resulting damage." Pellegrini v. Weiss, 165 Cal.App.4th 515, 524 (Cal. Ct. App. 6d 2008). In the lending context, "a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Federal Savings Loan Ass'n, 231 Cal.App.3d 1089, 1096 (Cal. Ct. App. 3d 1991).

Plaintiff does not state a claim for breach of fiduciary duty. PNC was the "mere lender of money" in this case and holds no fiduciary duty towards Plaintiff. As such, without the existence of a fiduciary relationship, there can be no claim for relief against PNC. Accordingly, PNC's motion to dismiss Claim 3 alleging a breach of fiduciary duty is GRANTED WITH PREJUDICE.

3. Declaratory Relief

In Claim 2, Plaintiff pleads that he had the right to rescind the loan based on TILA, 15 U.S.C § 1635(a), and Regulation Z, 12 C.F.R. § 226.15. In Claim 4, Plaintiff pleads that PNC violated the California Commercial Code § 3301, et seq. PNC argues that both of Plaintiff's claims fail as a matter of law so there is no controversy necessitating declaratory relief.

"Declaratory relief is appropriate (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir. 1986) (citations omitted).

Plaintiff's claims for declaratory relief fail as a matter of law. Claim 2 alleges that PNC violated Plaintiff's right to cancel the loan as prescribed by TILA, 15 U.S.C. § 1635(a) and Regulation Z, 12 C.F.R. § 226.15. However, the recission provision does not apply to "residential mortgage transaction[s]." 15 U.S.C. 1635(e); 12 C.F.R. § 226.15(f). A residential mortgage transaction is "a transaction in which a mortgage . . . is created . . . to finance the acquisition or initial construction of such dwelling." 15 U.S.C. § 1602(w) (emphasis added). Here, Plaintiff alleges that the loan was a construction loan to finance the construction of a home for his family. FAC ¶ 45. Therefore, TILA's recission provision does not apply to this loan as a matter of law.

Similarly, the Court cannot issue a declaratory judgment under Claim 4. Plaintiff seeks a declaratory judgment stating that PNC and the other defendants did not follow the legal requirements of the California Commercial Code § 3301, et seq. to produce a proper promissory note with which to foreclose the property. However, nonjudicial foreclosures are not governed by California Commercial Code § 3301. Singh v. America's Servicing Co., No. 2:10-CV-0836, 2010 WL 3853325, at *2 (E.D.Cal. Sept. 30, 2010). Nonjudicial foreclosures are governed by California Civil Code § 2924 which does not require possession of a promissory note to initiate foreclosure proceedings. Pok v. American Home Mortgage Servicing, Inc., No. 2:09-2385, 2010 WL 476674, at *7 (E.D. Cal. Feb. 3, 2010). Therefore, because Claim 4 is premised upon the alleged violation of an inapplicable Commercial Code provision, there is no actual controversy and the Court cannot issue declaratory relief. Accordingly, PNC's motion to dismiss Claim 2 and Claim 4 is GRANTED WITH PREJUDICE.

4. Accounting

PNC argues that with respect to Claim 5, Plaintiff fails to state a cause of action for an accounting because there is no fiduciary duty between PNC and Plaintiff and because Plaintiff does not allege that he is confused about who he owes or that any funds are owed to him. Plaintiff alleges that there is a fiduciary relationship between PNC and Plaintiff and an agency relationship between PNC and the other defendants. Plaintiff also alleges that because the loan was modified and sold to a third party and there are various parties contesting the amount of the note, he needs an accounting.

Under California law, "a fiduciary relationship between the parties is not required to state a cause of action for accounting. All that is required is that some relationship exists that requires an accounting". Teselle v. McLoughlin, 173 Cal.App.4th 156, 179 (Cal. Ct. App. 3d 2009).

An action for an accounting is equitable in nature. It may be brought to compel the defendant to account to the plaintiff for money or property, (1) where a fiduciary relationship exists between the parties, or (2) where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable.

Quinteros v. Aurora Loan Services, No. CIV-F-09-2200, 2010 WL 3817541, at * 5 (E.D.Cal. Sept. 30, 2010).

Accounts that are complicated enough to warrant an accounting generally involve a dispute where the plaintiff claims the defendant owes him money. See Union Bank v. Superior Court, 31 Cal.App.4th 573, 593-94 (Cal. Ct. App. 2d 1995) (dismissing the accounting claims since the defendant owed no money to plaintiffs and did not deprive them of any monies).

As this Court found, supra, there is no fiduciary relationship between PNC and Plaintiff. Additionally, the amounts at issue are monies Plaintiff owes to PNC under the mortgage. "Plaintiffs, as the party owing money, not the party owed money, has no right to seek an accounting." Hernandez v. First American Loanstar Trustee Services, No. 10cv00119, 2010 WL 1445192 *5 (S.D. Cal. Apr. 12, 2010). Plaintiff argues that he needs an accounting because there are multiple parties connected to his note and that the parties are contesting the amount Plaintiff owes. These allegations are not sufficient to merit an accounting. "A suit for an accounting will not lie where it appears from the complaint that none is necessary. . . ." St. James Church of Christ Holiness v. Superior Court In and For Los Angeles County, 135 Cal.App.2d 352, 359 (Cal. Ct. App. 2d 1955). Accordingly, PNC's motion to dismiss Claim 5 is GRANTED WITH PREJUDICE.

5. Unjust Enrichment

PNC argues that Claim 7, alleging unjust enrichment, is flawed because the allegations are vague, conclusory and fail to reflect any facts showing that PNC was unjustly enriched. Plaintiff has not responded to this argument, and a review of this claim reveals that it lacks factual detail. A plaintiff must allege sufficient factual detail to support violations of the elements of the alleged causes of action. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). The FAC alleges, in a conclusory manner, the elements for unjust enrichment but does not provide any supporting facts alleging how any of the commissions and fees PNC received by selling the loan to Kandaur constitutes unjust enrichment. Accordingly, PNC's motion to dismiss the unjust enrichment claim is GRANTED WITH LEAVE TO AMEND.

6. Negligence

PNC argues that Claim 8 fails to state a claim against PNC for negligence. Plaintiff's reply clarifies that he is not alleging a claim for negligence against PNC. Accordingly, PNC's motion to dismiss Claim 8 is GRANTED WITH PREJUDICE.

7. Business and Professions Code § 17200

PNC argues that Plaintiff does not state a claim under California Business and Professions Code ("UCL") § 17200 because he fails to sufficiently plead any unlawful conduct by PNC, he fails to plead any fraudulent conduct by PNC, and he fails to plead damages capable of restitution.

Section 17200 prohibits any "unlawful, unfair or fraudulent business act or practice." Cal. Bus. Prof. Code § 17200. An action based on this statute "borrows violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under § 17200 and subject to the distinct remedies provided thereunder." Farmers Insurance Exchange v. Superior Court, 2 Cal. 4th 377, 383 (Cal. 1992) (internal quotations omitted). Therefore, a cause of action under this section must be based on some predicate act involving a violation of some other statute.Cal-Tech Communications v. L.A. Cellular Telephone Co., 20 Cal. 4th 163, 180 (Cal. 1999).

Here, Plaintiff alleges that PNC violated several laws: (1) Plaintiff alleges PNC violated the California Commercial Code § 3301 et seq. for improper procedures surrounding the mortgage note; (2) breach of fiduciary duty; (3) negligence for breaching its fiduciary duty; (4) fraud for approving Plaintiff's loan; and (5) fraud and a violation of predatory lending laws when it allegedly ordered and authorized Moore's conduct. As discussed,supra, Plaintiff does not have a claim for a violation of § 3301 since this is a nonjudicial foreclosure and PNC does not owe Plaintiff a fiduciary duty. Thus, only the fraud claims are potentially actionable under the UCL.

As with allegations of fraud, "a plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation." Quintero Family Trust v. OneWest Bank, F.S.B., No. 09-CV-1561, 2010 WL 2618729, at * 12 (S.D. Cal. June 25, 2010). As discussed, supra, Plaintiff adequately pled the fraud allegations.

Plaintiff has not, however, alleged an injury in fact, a necessary element for a § 17200 claim. Plaintiff alleges that as a result of PNC's business practices, he was required to pay usurious loan payments and he now suffers from a negative credit rating due to petitioning for Chapter 7 bankruptcy, allegedly at PNC's direction.

"A plaintiff suffers an injury in fact for purposes of standing under the UCL when he or she has: (1) expended money due to the defendant's acts of unfair competition; (2) lost money or property; or (3) been denied money to which he or she has a cognizable claim." Marilao v. McDonald's Corp., 632 F.Supp. 2d 1008, 1012 (S.D. Cal. 2009) (internal citations omitted). "This statutory limitation requires that a plaintiff show he has suffered losses capable of restitution." Small v. Mortgage Electronic Registration Systems, Inc., Nos. 2:09-cv-0458 2:10-cv-0342, 2010 WL 3719314, at *12 (E.D. Cal. Sept. 16, 2010) (internal citations omitted). "Ordinarily when we say someone has `lost' money we mean that he has parted, deliberately or otherwise, with some identifiable sum formerly belonging to him or subject to his control; it has passed out of his hands by some means, such as being spent or mislaid." Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210, 244 (Cal. Ct. App. 6d 2010).

The mortgage payments are not subject to restitutionary damages. Plaintiff made his mortgage payments pursuant to his contractual obligations and in accordance with the terms and conditions of the loan, which he knew and understood at the time of closing. Likewise, the negative credit rating due to filing for bankruptcy is not a loss capable of restitution. A negative credit rating is not an identifiable sum of money. See Manabat v. Sierra Pacific Mortgage Co. Inc., No. CV F 10-1018, 2010 WL 2574161, at *15 (E.D. Cal. June 25, 2010) ("UCL claim offers an insufficient, bare allegation that unlawful business practices `damaged plaintiff's creditworthiness.'"). Accordingly, PNC's motion to dismiss the § 17200 claim is GRANTED WITH PREJUDICE.

C. Motion to Strike

PNC asks the Court to strike reference to punitive or exemplary damages and attorneys' fees. A motion to strike must survive a stringent standard and "should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation." Brewer v. Indymac Bank, 609 F.Supp. 2d 1101, 1113 (E.D. Cal. 2009).

1. Punitive or Exemplary Damages

PNC uses the Motion to Strike as another opportunity to reargue that Plaintiff has not sufficiently alleged fraud and therefore is unable to recover punitive damages. Since the Court foundsupra that Plaintiff properly alleged the fraud claim and since Plaintiff could possibly recover punitive damages if he proves that PNC engaged in "oppression, fraud, and malice," California Civil Code § 3294, Plaintiff's request for punitive damages could bear on the litigation. Accordingly, PNC's motion to strike Plaintiff's request for punitive damages is DENIED.

2. Attorneys' Fees

PNC argues that Plaintiff cannot recuperate attorneys' fees because Plaintiff does not allege a breach of the loan contract. PNC reasons that even though the loan contract has an attorneys' fees provision, Plaintiff is not trying to enforce that contract so he is not entitled to attorneys' fees. PNC also argues that attorneys' fees are not available under the UCL. Plaintiff counters that attorneys' fees can be recovered as costs of suit when there is an express provision in the contract that provides for recovery of fees, and the parties to the litigation are parties to the contract containing the attorneys' fees provision.

Plaintiff also argues that the UCL provides attorney's fees.

California Code of Civil Procedure § 1033.5(a)(10)(A) permits recovery of attorney fees "when authorized by . . . Contract." California Civil Code § 1717(a) addresses recovery of attorney fees in contract actions and provides:

In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney's fees in addition to other costs.

Even though Plaintiff is not directly alleging a breach of contract, he alleges fraud which could ultimately undermine the validity of the contract. "[A]n obligation to pay attorney fees incurred in the enforcement of a contract `includes attorneys' fees incurred in defending against a challenge to the underlying validity of the obligation.'" Siligo v. Castellucci, 21 Cal.App.4th 873, 878 (Cal. Ct. App. 6d 1994) (internal citations omitted). Since the Eastern District of California has awarded attorneys' fees to defendants who must litigate to maintain their property rights in a promissory note, so might this Court award attorneys' fees to Plaintiff if he can successfully prove that the note is tainted by fraud. See Whittle v. Wells Fargo Bank, N.A., No. CV F 10-0029, 2010 WL 1444675, at * 3 (E.D. Cal. Apr. 12, 2010).

As to the UCL claim for attorneys' fees, the Court decidedsupra to dismiss Plaintiff's TILA claim. Thus, he is not entitled to attorneys' fees under the UCL. Accordingly, PNC's motion to strike Plaintiff's request for attorneys' fees is DENIED.

III. ORDER

For the reasons set forth above,

PNC's motion to dismiss Claim 1 alleging fraud claim is DENIED.

PNC's motion to dismiss Claim 2 requesting declaratory relief is GRANTED WITH PREJUDICE.

PNC's motion to dismiss Claim 3 alleging a breach of fiduciary duty is GRANTED WITH PREJUDICE.

PNC's motion to dismiss Claim 4 requesting declaratory relief is GRANTED WITH PREJUDICE.

PNC's motion to dismiss Claim 5 requesting an accounting is GRANTED WITH PREJUDICE.

PNC's motion to dismiss Claim 7 alleging unjust enrichment claim is GRANTED WITH LEAVE TO AMEND.

PNC's motion to dismiss Claim 8 alleging negligence is GRANTED WITH PREJUDICE.

PNC's motion to dismiss Claim 9 alleging a violation of § 17200 is GRANTED WITH PREJUDICE.

PNC's motion to strike reference to punitive damages is DENIED.

PNC's motion to strike reference to attorneys' fees is DENIED.

Plaintiff shall file his amended complaint within twenty (20) days of the date of this Order.

IT IS SO ORDERED.

Dated: December 29, 2010